Friday, September 16, 2005

Roe v. Wade was a deeply flawed decision by the United States Supreme Court.

From a legal standpoint, inarguably the Supreme Court overstepped the bounds of merely deciding the specific case before them and created out of whole cloth specific standards that must be met by any law regulating abortion. That fact, in and of itself, does not mean that Roe v. Wade should be overturned, though. After all, Miranda got into some specifics as to the rights that must be read to a suspect. However, it does leave Roe vulnerable to attack on grounds of judicial activism.

Perhaps even more important is the issue of public reliance on the decision. In other words, have people shaped their lives based on the decision? Have other major decisions relied on Roe v. Wade? Clearly, a generation of women have grown up with the expectation that their reproductive privacy rights are protected by a decision of the Supreme Court in a precedent that has been upheld 38 times as a "super-duper precedent" (in the phrase of Senator Specter). However, it is equally clear that a generation of citizens have grown up with the expectation that the Supreme Court will at some point reverse itself and protect the right to life of an unborn human fetus, perhaps even from the moment of conception.

The conflicting reliance of two bitterly opposed factions points to the need for an enduring political solution to the question. Clearly, many people are determined to overturn this "super-duper precedent," and ironically, there is precedent for overturning a "super-duper precedent." The horribly racist Plessy v. Ferguson decision left Negroes as second-class citizens for almost twice as long as Roe v. Wade has been "settled law," and it was repeatedly upheld before finally Brown v. Board of Education gave the Court an avenue to remedy its grievous error. Many people — a minority of the population, to be sure — feel that Roe is no less erroneous, no less odious, than Plessy.

There is only one solution: we need a Constitutional amendment. I jokingly suggested Senator John McCain as a replacement nominee for Chief Justice, but perhaps in his current role as Senator he could take charge of a bipartisan effort to lay out a scheme for determining when abortion must be permitted, when it must be prohibited, and when the decision is up to the individual states. Personally, I believe that it is vital that every state in the nation recognize some right to abortion, but I see no reason why, in a federal system, every state must have identical abortion rights. If we are ever to move beyond this issue, to truly be able to consider it as settled law, we need to find a formula for balancing the right to reproductive privacy against the legitimate interest of the state in protecting human life. To be effective, that formula needs to find such broad support that it can pass in 38 states.

We must find some way to write "safe, legal, and rare" into the Constitution.